The matter before the court is a procedural quagmire initiated by the filing of a third-party property claim by Frank Messick in the form of a sheriff’s interpleader under Pa.R.C.P. 3201-3216. (These rules govern the procedure in sheriff’s inter-pleader under the Act of June 11,1931, P.L. 883.) The sheriff of Chester County sought the determination of this court as to whether real estate, specifically the marital residence, owned by Frank and Lynn Messick as tenants by the entireties, is subject to sale pursuant to an execution of judgment by a judgment-creditor of Lynn Messick,
First, it is important to note that the parties here proceeded in the procedural posture of a sheriff’s interpleader because they relied on a case initiated in Bradford County which was appealed to the Superior Court. Leopold v. Tuttle, 378 Pa. Super. 466, 549 A.2d 151 (1988). We have found no other case law prior to or after Leopold which allowed a real estate property claim to be litigated in the posture of a sheriff’s interpleader and we refrain from doing so now; to do so would be to contradict the scope set forth in the Rules of Civil Procedure on interpleader.
Pa.R.C.P. 3201 states:
“These rules govern the procedure in sheriff’s interpleader under the Act of June 22, 1931, RL. 883, 12 P.S. §3258 et seq., when tangible personal properly levied upon pursuant to a writ of execution is claimed to be the property of a person other than the defendant in the execution.” (emphasis added)
Pa.R.C.P. 3202 goes on to say:
“Rule 3202. Property Claim—
“(a) A claim to tangible personal property levied upon pursuant to a writ of execution shall be in writing and substantially in the form provided by Rule 3258 and shall be filed with the sheriff prior to any execution sale of the property claimed.” (emphasis added)
See also Philip W. Amram & Sidney Schulman, “Explanatory Comments to New Sheriff’s Interpleader Rules,” 154 Leg. Intelligencer 85, Jan 17, 1966, at 1.
The parties wrongly rely on Leopold to extend the scope of this rule to effect a determination of title to real estate. In order to avoid this problem in the future, and because we can see that Leopold caused the parties to think that they could use this procedure, we will point to the source of the misunderstanding. It is obvious to this court, after having read the Bradford County case, Fern L. Leopold v. Donald H. Tuttle, No. 87 JG 001408, 87 JG 001409, 86-562 and its ensuing opinion on appeal, that neither court meant to attempt to extend the Rules. The Court of Common Pleas in Bradford County addressed the law as to the ability of a judgment creditor to execute on property in Pennsylvania that is held by husband and wife as tenants by the entireties. It is noteworthy that in the Bradford County case, unlike the case before us, there was a transfer of title from
It is true that the defendant-debtor in Bradford County filed a sheriff’s interpleader for a determination of the right to proceed in execution upon real estate, and that the Court of Common Pleas allowed the plaintiff-creditor to proceed with a defense on appeal in Leopold. Perhaps the Superior Court would have addressed the issue before us now if the appropriateness of the procedure used in the lower court had been an issue on appeal, however, it is clear to us that it was not. The issues on appeal in Leopold were: (1) substantive issues involved in the Uniform Fraudulent Conveyance Act, and (2) the procedural issue of whether or not additional pleadings are allowed in a sheriff’s interpleader action. What was not at issue, nor addressed sua sponte, on either level, was the issue of whether or not sheriff’s interpleader is the correct vehicle for deciding the title to real estate which is about to be executed upon in a sheriff’s sale. As we stated previously, we conclude that it is not.
In addition, the applicability of sheriff’s interpleader was further obfuscated by a mistaken use of the term “real estate” in that case. Leopold, 378 Pa. Super, at 474, 549 A.2d at 155. The Rule clearly uses the word “property” throughout, and the word “property” in this Rule, as we have demonstrated, clearly refers to tangible personal property and not to real estate.
For the above reasons, the following order is entered:
ORDER
And now, May 5,1992, the sheriff’s sale of the property of Frank and Lynn Messick at 14 Downing Circle, Downingtown, Pennsylvania, is hereby stayed pending further action of the parties and without prejudice to either party to institute an appropriate action in which the rights of the parties may be fully determined.
Reliance alleges that Lynn Messick was an indemnitor in dealings with her former husband’s construction company, Schoolfield Con
